Lawyers Entitled to Overtime Pay? Maybe So When Not “Practicing Law”

The Second Circuit revived an FLSA collective action filed by Michael Lola, an attorney licensed to practice law in California, who for fifteen months performed document review services for Skadden Arps, Slate, Meagher & Flom LLP (“Skadden”) though a staffing agency while living and working in North Carolina.  Lola alleged that these services did not constitute the “practice of law,” and that he was therefore eligible for overtime under the Fair Labor Standards Act.  Rejecting Lola’s arguments, a Southern District of New York judge dismissed the complaint on a Rule 12(b)(6) motion on the grounds that Lola was exempt from overtime.  However, the Second Circuit held that when accepting all of Lola’s allegations as true for purposes of a motion to dismiss, his work might not constitute the practice of law.

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Show Me the Money: DOL Proposed Regulations Dramatically Expand Overtime Eligibility for White Collar Employees

After months of talk and speculation about new overtime regulations, on June 30, 2015, the United States Department of Labor (“DOL”) issued its proposed rule and request for comments on its “white collar exemption” regulations.  The so-called “white collar exemptions” – the executive, administrative and professional employees exemptions – were last revised in August 2004.  Assuming the regulations are revised in accordance with the DOL’s proposal, the DOL estimates that 4.6 million workers exempt under the current regulations would become entitled to overtime under the FLSA.  In addition, an estimated 36,000 employees who were previously considered “highly compensated” employees under the FLSA would no longer satisfy that definition.   Read More

Swinging for the Fences: Minor Leaguers Continue Suit Alleging They Were Paid Peanuts By The MLB

Baseball season is well underway as fans fill themselves up on hot dogs and beers, don their rally caps for some late-inning luck, and cheer for their favorite players. Meanwhile, a class action against Major League Baseball by former minor league players has been trotting through federal court. In Senne v. MLB, No. 3:14-cv-00608-JCS (N.D. Cal. Feb. 7, 2014), ECF No. 1, the plaintiffs cry foul in alleging that “paying their dues” on the way to the big leagues isn’t paying the bills. Specifically, the plaintiffs allege that MLB and all 30 of its teams have violated the FLSA by not paying the minor leaguers overtime and minimum wage.

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California Court of Appeal Says No to Class Certification of Independent Contractors

The California Court of Appeal has affirmed a trial court’s order denying class certification on the alleged misclassification of independent contractors. The Court of Appeal provides a lengthy analysis of ascertainability and predominance of common issues of law and fact under California’s class action laws.  Read More

Orrick’s Employment Law and Litigation Global Newsletter – Summer 2012

Welcome to the first edition of Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals. We have designed this newsletter to provide our multinational clients with quarterly updates on important employment law issues across the globe.

 

 

The Price of Peace – Consulting Group Identifies Average Cost of Wage-and-Hour Class Settlements

It is no secret that the vast majority of wage-and-hour class actions are settled.  What is less clear is the going settlement rate.  Researchers from NERA, an economic consulting group, recently answered this question:  approximately $1,100 per plaintiff per class year.  Read More

California Supreme Court Concludes No Attorney’s Fees For Meal and Rest Break Suits

California’s highest court held that a party who prevails on a claim for an alleged failure to provide meal or rest breaks is not entitled to attorney’s fees under either Section 1194 or Section 218.5 of the California Labor Code. Kirby v. Immoos Fire Protection, Inc., Cal. Sup. Ct. S185827 (April 30, 2012). Section 1194 is a “one-way fee-shifting statute” that authorizes an award for attorney’s fees only to employees who prevail on minimum wage or overtime claims. By contrast, Section 218.5 is a “two-way fee-shifting statute” that authorizes either an employee or an employer to recover attorney’s fees as a prevailing party in an action brought for the nonpayment of wages.

The court concluded that neither of those sections is applicable to claims for unpaid meal or rest breaks as such claims do not fit under the terms “minimum wage” or “overtime” specified in Section 1194, or the terms “nonpayment of wages” used in Section 218.5. Thus, employers cannot recover attorney’s fees for failed meal and rest break actions. On the other hand, neither can employees. Reading this decision in the context of the California Supreme Court’s April 12, 2012 Brinker decision, plaintiffs’ lawyers may be more cautious as to which meal and rest break claims they pursue as they will not be entitled to recover attorney’s fees as a result of those in which they prevail.